https://www.commonlii.org/uk/cases/EngR/1842/

ELEANOR THOMAS against BENJAMIN THOMAS. Saturday, February 5th, 1842. Declaration for non-performance of an agreement stated to be, that defendant, when required, should convey a certain house and premises to plaintiff for her life, and that plaintiff, at all times during her possession thereof, should pay defendant and S. T. (since deceased), their executors, &c., 11. yearly towards the ground rent payable in respect of the said house and other premises, and keep the house in repair. Pleas: 1. Non assumpsit; 2. That there was not the con- sideration alleged. Issues thereon. The agreement was between plaintiff, who was the widow, and defendant and S. T., the executors, of J. T. After reciting that J. T., shortly before his death, had verbally expressed his desire that plaintiff, in addition to his other provision for her, should have the house, &c. during her life, and reciting that defendant and S. T. were desirous that such intention should be carried into effect, it was witnessed that, " in consideration of such desire and of the premises," the executors would convey the house, &c. to the plaintiff for her life; "provided nevertheless, and it is hereby further agreed and declared," that the plaintiff should during her possession pay to the executors 11. yearly towards the ground rent payable in respect of the said house and adjoining premises, and should keep the said house, &c. in repair. Held, that the agree- ment so to pay, and to keep the premises in repair, was a consideration for the agreement by the defendant and S. T.; and that respect for the wishes of the testator was no part of the legal consideration for their agreement, and need not be stated in the declaration.

[S. C. 2 G. & D. 226; 11 L. J. Q. B. 104; 6 Jur. 645. Discussed, Gardiner v. Gardiner, 1861, 12 Ir. C. L. R. 573; Lee v. Mathews, 1880, 6 L. R. Ir. 534.]

Assumpsit. The declaration stated an agreement between plaintiff and defendant that the defendant should, when thereto required by the plaintiff, by all necessary deeds, conveyances, assignments, or other [852] assurances, grants, &c., or otherwise, assure a certain dwelling house and premises, in the county of Glamorgan, unto plaintiff for her life, or so long as she should continue a widow and unmarried, and that plaintiff should, at all times during which she should have possession of the said dwelling house and premises, pay to defendant and one Samuel Thomas (since deceased), their executors, administrators or assigns, the sum of 11. yearly towards the ground rent payable in respect of the said dwelling house and other premises thereto adjoining, and keep the said dwelling house and premises in good and tenant- able repair that, the said agreement being made, in consideration thereof, and of plaintiff's promise to perform the agreement, Samuel Thomas and the defendant promised to perform the same: and that, although plaintiff afterwards and before the commencement of the suit, to wit, &c., required of defendant to grant, &c., by a necessary and sufficient deed, &c., the said dwelling house, &c. to plaintiff for her life, or whilst she continued a widow, and though she had then continued, &c., and still was, a widow and unmarried, and although she did, to wit on, &c., tender to the defendant for his execution a certain necessary and sufficient deed, &c., proper and sufficient for the conveyance, &c., and although, &c. (general readiness of plaintiff to perform), yet defendant did not nor would then or at any other time convey, &c.

Pleas. 1. Non assumpsit. 2. That there was not the consideration alleged in the declaration for the defendant's promise. 3. Fraud and covin.

Issues thereon.

At the trial, before Coltman J., at the Glamorganshire Lent Assizes, 1841, it appeared that John Thomas, the [853] deceased husband of the plaintiff, at the time of his death, in 1837, was possessed of a row of seven dwelling houses in Merthyr Tidvil, in one of which, being the dwelling house in question, he was himself residing; and that by his will he appointed his brother Samuel Thomas (since deceased) and the defendant executors thereof, to take possession of all his houses, &c., subject to certain payments in the will mentioned, among which were certain charges in money for the benefit of the plaintiff. In the evening before the day of his death, he expressed orally a wish to make some further provision for his wife; and on the following morning he declared orally, in the presence of two witnesses, that it was his will that his wife should have either the house in which he lived and all that it contained, or au additional sum of 1001, instead thereof.

This declaration being shortly afterwards brought to the knowledge of Samuel Thomas and the defendant, the executors and residuary legatees, they consented to carry the intentions of the testator so expressed into effect; and, after the lapse of a few days, they and the plaintiff executed the agreement declared upon; which, after stating the parties, and briefly reciting the will, proceeded as follows.

"And, whereas the said testator, shortly before his death, declared, in the presence of several witnesses, that he was desirous his said wife should have and enjoy during her life, or so long as she should continue his widow, all and singular the dwelling house," &c., "or 1001. out of his personal estate," in addition to the respective legacies and bequests given her in and by his said will; "but such declaration and desire was not reduced to writing in the lifetime of the said John Thomas [854] and read over to him; but the said Samuel Thomas and Benjamin Thomas are fully convinced and satisfied that such was the desire of the said testator, and are willing and desirous that such intention should be carried into full effect: now these presents witness, and it is hereby agreed and declared by and between the parties, that, in consideration of such desire and of the premises," the executors would convey the dwelling house, &c. to the plaintiff and her assigns during her life, or for so long a time as she should continue a widow and unmarried: "provided nevertheless, and it is hereby further agreed and declared, that the said Eleanor Thomas, or her assigns, shall and will, at all times during which she shall have possession of the said dwelling house, &c., pay to the said Samuel Thomas and Benjamin Thomas, their executors, &c., the sum of 11. yearly towards the ground rent payable in respect of the said dwelling house and other premises thereto adjoining, and shall and will keep the said dwelling house and premises in good and tenantable repair:" with other provisions not affecting the questions in this case.

The plaintiff was left in possession of the dwelling house and premises for some time: but the defendant, after the death of his co-executor, refused to execute a conveyance tendered to him for execution pursuant to the agreement, and, shortly before the trial, brought an ejectment, under which he turned the plaintiff out of possession. It was objected for the defendant that, a part of the consideration proved being omitted in the declaration, there was a fatal variance. The learned Judge over- ruled the objection, reserving leave to move to enter a nonsuit. Ultimately a verdict was found for the plaintiff on all the issues; and, in Easter term [855] last, a rule nisi was obtained pursuant to the leave reserved.

Chilton and W. M. James now shewed cause. It is sufficient if there be any legal consideration for this agreement. [E. V. Williams conceded that, in a Court of Law, he could not go into the adequacy of the consideration, and that, if the consideration was in part a legal and in part only a moral one, the latter part need not be stated in the declaration (a).] The objection taken at the trial was, that the consideration for the agreement, instead of being that which is alleged in the declaration, was, as stated in the agreement itself, a respect for the testator's intentions, in which case this would be a mere voluntary agreement: the defendant now appears to contend that respect for the testator's intentions is a part of the legal consideration, and ought to have been set out, But it could not be so characterized. All that a plaintiff is required to do is to set out the legal effect of the contract, and to shew performance on the plaintiff's part: here she was in possession for three or four years, paying rent, under an undertaking to pay rent and keep the premises in repair: that is a good considera- tion: and, if so, it cannot be necessary in pleading it to allege additional motives, which, in the eye of the law, do not enter into the consideration. Thus, in debt for rent on a demise of a messuage with the furniture, though in fact the furniture forms an important item in estimating the rent, yet, as, in point of [856] law, the rent issues out of the real property, and not out of the furniture, it is sufficient to allege a demise of the real property; Farewell v. Dickenson (6 B. & C. 251). Parties are often influenced by motives which form no part of the legal consideration, such as the character of a tenant, or the merits or distresses of the party intended to be benefited; and the circumstance that such motives happen to be stated in the agreement cannot affect the legal rights of the parties, nor make it necessary to state those motives in the declaration.

E. V. Williams, contrà. The consideration alleged in the declaration is solely the promise to pay rent and repair: therefore it lay on the plaintiff to prove that to have been the true and sole consideration; Beech v. White (12 A. & E. 668). But the evidence shews that the testator's declaration, as brought before and recognized by the executors, was part, if not the whole, of the consideration. It is conceded that where there is a good legal consideration conjoined with a moral one, it is not neces- sary to state both; but here regard for the testator's intentions was not, under the circumstances, a mere moral consideration; for the declaration had been made and reduced to writing so formally that it might well be thought valid in law, and so the agreement be made by the executors and residuary legatees to buy peace (c). If the testator's expressed wish was part or the whole of the consideration, the declaration should have so alleged it, and a nonsuit ought to be entered. But, in fact, if it be not the consideration, there is no [857] legal consideration at all: this is a mere gift cum onere; and, had it been stated truly, the declaration would have been bad on general demurrer. [Patteson J. The rent, if issuing out of the house, might follow the gift; but the obligation to repair does not.] The expressions in the agreement with reference to the ground rent, and the evidence of one of the witnesses, shew that the property was held under a superior landlord: the assignee's obligation to pay rent and repair would therefore be implied from the very nature and state of things which existed between the parties; Bayley J. in Burnett v. Lynch (a)1. [Lord Denman C.J. There is nothing to shew who was liable to pay the ground rent. Coleridge J. The 11. is reserved payable to the executors: it is quite different from an assignee's liability.] Still the annexing of such a payment cannot be regarded as the considera- tion. What is meant by the consideration for a promise, but the cause or inducement for making it? Plowden (b), commenting on Sharington v. Strotton, says, "Note: That by the civil law nudum pactum is defined thus, Nudum pactum est ubi nulla subest causa præter conventionem; sed ubi subest causa, fit obligatio, et parit actionem." In Chitty on Contracts (c) the following passage is cited from the Code Civil: "L'obligation sans cause, ou sur une fausse cause, ou sur une cause illicite, ne peut avoir aucun effet." The rent and repairs cannot be said to have been the cause or motive which induced the executors to make this agreement: it must have been such a belief as is recited in the [858] agreement itself, which, though a good moral con- sideration, and perhaps sufficient to raise a use, is not sufficient to support a promise. The proviso merely causes the donee to take the gift charged with the burthen of paying the rent and keeping the premises in repair; and she cannot turn these con- ditions into a consideration. It is clear that, if the proviso had not existed, the executors might have retracted at any moment; their right to do so cannot be qualified by the circumstance that the gift was cum onere; otherwise, when carried out to conveyance, it would be a conveyance on good, as distinguished from valuable, consideration. Suppose a subsequent sale; a purchaser for value would have been entitled, though he had purchased with notice of the gift. A consideration, to be sufficient against such a purchaser within the saving clause of the 27 Eliz. c. 4, s. 4 (a)2, must be such a consideration as would support an assumpsit. Were it otherwise, donees by voluntary gift would confirm their estates by covenanting to repair a monument, maintain a plantation, or the like. Here the donors, in effect, say, that the donee is to pay no purchase money, but is to do what a purchaser for full con- sideration would have to do, pay the rent and maintain in repair. And it is to be observed that, in that part of the agreement where the purchase money is usually mentioned, instead of any valuable consideration there is a mere reference to the testator's wishes; which is followed in a different part of the deed by a simple pro- vision for the burthens commonly belonging and incident to the subject matter. The defendant is therefore entitled to a verdict on the first issue.

[859] Lord Denman C.J. There is nothing in this case but a great deal of ingenuity, and a little wilful blindness to the actual terms of the instrument itself. There is nothing whatever to shew that the ground rent was payable to a superior landlord; and the stipulation for the payment of it is not a mere proviso, but an express agreement. (His Lordship here read the proviso.) This is in terms on express agreement, and shews a sufficient legal consideration quite independent of the moral feeling which disposed the executors to enter into such a contract. Mr. Williams's definition of consideration is too large: the word causa in the passage referred to means one which confers what the law considers a benefit on the party. Then the obligation to repair is one which might impose charges heavier than the value of the life estate.

Patteson J. It would be giving to causa too large a construction if we were to adopt the view urged for the defendant: it would be confounding consideration with motive (a)s. Motive is not the same thing with consideration. Consideration means something which is of some value in the eye of the law, moving from the plaintiff: it may be some benefit to the plaintiff, or some detriment to the defendant; but at all events it must be moving from the plaintiff. Now that which is suggested as the consideration here, a pious respect for the wishes of the testator, does not in any way move from the plaintiff; it moves from the testator; therefore, legally speaking, it forms no part of the consideration. Then it is said that, if that be so, there [860] is no consideration at all, it is a mere voluntary gift: but when we look at the agreement we find that this is not a mere proviso that the donee shall take the gift with the burthens; but it is an express agreement to pay what seems to be a fresh apportion- ment of a ground rent, and which is made payable not to a superior landlord but to the executors. So that this rent is clearly not something incident to the assignment of the house; for in that case, instead of being payable to the executors, it would have been payable to the landlord. Then as to the repairs: these houses may very possibly be held under a lease containing covenants to repair; but we know nothing about it: for any thing that appears, the liability to repair is first created by this instrument. The proviso certainly struck me at first as Mr. Williams put it, that the rent and repairs were merely attached to the gift by the donors; and, had the instrument been executed by the donors only, there might have been some ground for that construction ; but the fact is not so. Then it is suggested that this would be held to be a mere voluntary conveyance as against a subsequent purchaser for value: possibly that might be so: but suppose it would: the plaintiff contracts to take it, and does take it, whatever it is, for better for worse: perhaps a bonâ fide purchase for a valuable con- sideration might override it; but that cannot be helped.

Coleridge J. The concessions made in the course of the argument have, in fact, disposed of the case. It is conceded that mere motive need not be stated: and we are not obliged to look for the legal consideration in any particular part of the instrument, merely because [861] the consideration is usually stated in some particular part: ut res magis valeat, we may look to any part. In this instrument, in the part where it is usual to state the consideration, nothing certainly is expressed but a wish to fulfil the intentions of the testator: but in another part we find an express agreement to pay an annual sum for a particular purpose; and also a distinct agreement to repair. If these had occurred in the first part of the instrument, it could hardly have been argued that the declaration was not well drawn, and supported by the evidence. to the suggestion of this being a voluntary conveyance, my impression is that this payment of 11. annually is more than a good consideration: it is a valuable considera- tion: it is clearly a thing newly created, and not part of the old ground rent.

Rule discharged